Ram Singh vs Kifayat Ali and Another

Oldfield, J.—It appears to us that the application of the 20th July 1880 can have no effect as an application made in accordance with law for execution within the meaning of Article 179. It cannot be said to have been made at all, having been put in and afterwards taken back,--in fact, what was done in the matter by the decree-holder had been undone by him, and the proceeding became, to all intents and purposes, the same as though no application had been put in.

We are unable to concur in the view taken by the learned Judges of the Madras High Court in Ramanadan Chetti v. Periatambi Shervai ILR Mad. 250. A similar case has been brought to notice, decided by the Bombay High Court--Pirjade v. Pirjade ILR 6 Bom. 681. It was there held that the rule in Section 374 of the CPC is made applicable by Section 647 to applications, and that Clause 4, Article 179 of Act XV of 1877 must be read subject to the rules contained in Sections 374 and 647 of the Civil Procedure Code, and in this view we concur. Section 374 is to the effect that "in any fresh suit instituted on permission granted under the last preceding section, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been brought; " and applying this rule to the application for execution of the 19th February 1883, which is before us, the question of limitation must be determined as if the application of the 20th July 1880, had never been filed, and the present application will in consequence be barred by limitation. We set aside the order of the Lower Appellate Court, and allow the appeal with costs.